SHANKAR LAL @ GAURI SHANKAR GUPTA Vs. STATE

JUDGEMENT

(1.) This appeal is directed against the judgment and order on sentence passed by the trial court on 26.03.2010 and 29.03.2010 respectively. The Appellants Shankar Lal @ Gauri Shankar Gupta and his son Gautam Gupta @ Rinku have been convicted under Section 302 read with Section 34 IPC for setting ablaze their tenant Laxmi Narain who succumbed to the burn injuries. The Appellants were sentenced to life imprisonment and were also subjected to fines of Rs. 5,000/- each, and in default thereof, to simple imprisonment for six months each. The incident is said to have taken place on 25.03.2004 at about 11 P.M. The deceased (Laxmi Narain) passed away in Safdarjung Hospital, New Delhi on 28.03.204.

(2.) The learned Counsel for the Appellants submitted that the prosecution case is that the Appellant No. 1 (Shankar Lal @ Gauri Shankar Gupta) was the landlord of the room in the second floor where the deceased Laxmi Narain was a tenant and that because the landlord wanted Laxmi Narain to vacate the said room, he was set ablaze on 25.03.2004. The learned Counsel for the Appellant further submitted that the entire case of the prosecution rests on the so called dying declaration (exhibit PW-6/B) which is said to have been made by the deceased Laxmi Narain to the Investigating Officer in Safdarjung Hospital on 26.03.2004 itself. He submitted that the said statement does not inspire any confidence and in any event cannot be regarded as a dying declaration, inasmuch as, there is no certification of any doctor on the said statement. He also submitted that the alleged motive has also not been established, inasmuch as, the so called dying declaration exhibit PW-6/B itself records that the deceased was earlier a tenant of the Appellants and that he had left the premises but was once again inducted as a tenant about one year back. This is also corroborated by the testimony of PW-2 Alpana Devi who is the wife of the deceased Laxmi Narain. Consequently, the learned Counsel for the Appellants submitted that where the Appellants themselves had re-inducted Laxmi Narain as a tenant only a year back, there was no occasion for them to want Laxmi Narain to vacate the said room.

(3.) The learned Counsel for the Appellants also submitted that by virtue of exhibit PW-6/A, the Investigating Officer had made a request on 26.03.2004 to the doctor to give his opinion as to whether Laxmi Narain was fit to make a statement or otherwise. On the same request letter exhibit PW-6/A, Dr S.K. Chawla (PW-7) endorsed that the patient was conscious and oriented and was following verbal commands and was fit for giving a statement. The endorsement of the doctor was made at 2 a.m. on 26.03.2004. The learned Counsel for the Appellants submitted that while this endorsement is there on the request letter exhibit PW-6/A there is no certification in the alleged dying declaration exhibit PW-6/B which was recorded at some time prior to 4.50 a.m. on 26.03.2004. The exact time of recording of the so-called dying declaration is not indicated in exhibit PW-6/B. Therefore, according to the learned Counsel for the Appellants it cannot be said that the deceased Laxmi Narain was in a fit state of mind at the exact point when the so-called dying declaration was recorded.